Keller announces Placing of new ordinary shares

RNS Number : 7424G

Keller Group PLC

11 June 2013

 



THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED IN IT IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, NEW ZEALAND, THE REPUBLIC OF IRELAND, THE REPUBLIC OF SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL.

For immediate release                                                                                                                            11 June 2013

Keller Group plc ("Keller" or the "Company")    

Keller announces a placing of 6,600,000 new ordinary shares at 890 pence per share

to raise £58.7 million before expenses

Keller (LSE: KLR), the international ground engineering specialist, today announces a placing of 6,600,000 new ordinary shares of 10 pence each in the share capital of the Company (the "Placing Shares") at 890 pence per share (the "Placing Price") to raise £58.7 million before expenses (the "Placing").

Investec Bank plc ("Investec") and Jefferies International Limited ("Jefferies" and, together, the "Joint Bookrunners") are acting as joint bookrunners in connection with the Placing.  

The Placing Shares represent approximately 9.9 per cent. of the Company's issued share capital immediately prior to the Placing. The Placing Price of 890 pence per share represents a 1.8 per cent. discount to the middle market closing price of 906 pence per Keller ordinary share on 10 June 2013. 

The net proceeds of the Placing will be used to fund the proposed acquisition of North American Piling, from North American Energy Partners (the "Acquisition"). The Acquisition is the subject of a separate announcement from Keller released this morning. The consideration for the Acquisition will comprise an initial CDN$227.5 million (£144.0 million) payable in cash on completion and up to a further CDN$92.5 million (£58.5 million) of deferred contingent consideration payable in cash depending upon financial performance in the three years following completion, giving a maximum aggregate consideration of CDN$320 million (£202.5 million).

The Company is proposing to finance the Acquisition through the net proceeds of the issue of the Placing, together with the drawdown of some of the available funds under a new bank facility and existing bank facilities. The Placing is not conditional on the completion of the Acquisition. It is therefore possible that the Placing will complete and the Acquisition will not. In the event that the Acquisition does not complete and to the extent that opportunities for similar acquisitions have not been identified by the Board, the Board will review Keller's funding structure and will consider its options which will include using the proceeds for general corporate purposes and/or returning surplus cash to Shareholders. Any return of capital may have adverse tax implications for Shareholders.

The Placing Shares will, when issued, be fully paid and will rank pari passu in all respects with the existing ordinary shares of the Company, including the right to receive all dividends and other distributions declared, made or paid on or in respect of such shares after the date of issue of the Placing Shares.

In connection with the Placing, Keller has entered into an agreement today with Investec and Jefferies (the "Sponsor and Placing Agreement"), which is conditional upon, amongst other things, Admission (as defined below). In accordance with the terms of the Sponsor and Placing Agreement, each Joint Bookrunner has, severally, agreed to procure placees for the Placing Shares and to the extent that such Joint Bookrunner is unable to procure placees, it will subscribe as principal for its proportionate share of the Placing Shares for which placees have not been procured. Further details of the Sponsor and Placing Agreement can be found in the terms and conditions contained in the Appendix to this announcement under the heading "Details of the Sponsor and Placing Agreement and the Placing Shares".

The Placing is being carried out pursuant to the authorities granted by shareholders at the Company's annual general meeting on 23 May 2013, so does not require any further shareholder approval.

Applications have been made to the Financial Conduct Authority (the "FCA") for admission of the Placing Shares to the premium listing segment of the Official List of the UK Listing Authority and to the London Stock Exchange plc for admission to trading of the Placing Shares on its main market for listed securities (together "Admission"). It is expected that Admission will become effective at or around 8.00 a.m. on Friday 14 June 2013 and that dealings in the Placing Shares will commence at that time.

Following Admission, Keller's issued share capital shall consist of 73,099,735 ordinary shares, each with voting rights. As at 10 June 2013, the number of ordinary shares held by the Company as treasury shares was 2,162,527.  Shareholders may use the above figure as the denominator for the calculations by which they will determine if they are required to notify their interest in, or a change to their interest in, Keller under the FCA's Disclosure and Transparency Rules.

The Appendix to this announcement sets out the detailed terms and conditions of the Placing. By choosing to participate in the Placing and by making an oral and legally binding offer to acquire Placing Shares, investors will be deemed to have read and understood this announcement (including the Appendix) in its entirety and to be making such offer on the terms and conditions contained herein and to be providing the representations, warranties and acknowledgements contained in the Appendix to this announcement.

Enquiries:

Keller                                                                                                                          [phone]

Justin Atkinson, Chief Executive

James Hind, Finance Director

Jefferies                                                                                                                     [phone]

Simon Hardy

Lee Morton

Harry Nicholas

Investec                                                                                                                      [phone]

Keith Anderson

James Rudd

Cara Griffiths

Finsbury                                                                                                                      [phone]

Gordon Simpson

Rowley Hudson

This announcement is for information purposes only and does not constitute or form part of an offer or invitation to acquire or dispose of any securities of the Company, or constitute a solicitation of any offer to purchase or subscribe for securities in the United States, Australia, Canada, Japan, New Zealand, the Republic of Ireland or the Republic of South Africa or any other state or jurisdiction in which such an offer or solicitation would be unlawful. The Placing  Shares have not been, and will not be, registered under the United States Securities Act of 1933, as amended (the "US Securities Act"), or under the securities legislation of any state or other jurisdiction of the US and may not be offered, sold or transferred, directly or indirectly, in the US except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the US Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the US. No public offering of securities is being made in the US.

Neither this announcement nor any copy of it may be taken or transmitted into Australia, Canada, Japan, New Zealand, the Republic of Ireland or the Republic of South Africa or to any securities analyst or other person in any of those jurisdictions. Any failure to comply with this restriction may constitute a violation of US, Australia, Canada, Japan, New Zealand, the Republic of Ireland or the Republic of South Africa securities law. The distribution of this announcement in certain other jurisdictions may be restricted by law and persons into whose possession this announcement comes should inform themselves about, and observe, any such restrictions.

This announcement and any offer of securities to which it relates are only addressed to and directed at persons who are (1) qualified investors within the meaning of Directive 2003/71/EC and any relevant implementing measures (the prospectus directive) and (2) who have professional experience in matters relating to investments who fall within article 19(1) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order") or are persons falling within article 49(2)(a) to (d) ("High Net Worth Companies, Unincorporated Associations, etc") of the Order (all such persons together being referred to as "relevant persons"). The information regarding the Placing set out in this announcement must not be acted on or relied on by persons who are not relevant persons. Any investment or investment activity to which this announcement relates is available only to relevant persons and will be engaged in only with relevant persons.

Each of Investec Bank plc ("Investec") or Jefferies International Limited ("Jefferies") is acting exclusively for the Company in connection with the Placing and not for any other person and will not be responsible to anyone other than the Company for providing the protections afforded to their respective clients, nor for providing advice in relation to the Placing, the contents of this announcement, or any transaction or arrangement referred to herein.

This announcement has been issued by, and is the sole responsibility of, the Company. Apart from the responsibilities and liabilities, if any, which may be imposed on Investec or Jefferies by the Financial Services and Markets Act 2000 or by the regulatory regime established under it, neither Investec nor Jefferies nor any of their respective affiliates accepts any responsibility whatsoever for the contents of the information contained in this announcement or for any other statement made or purported to be made by or on behalf of Investec or Jefferies or any of their respective affiliates in connection with the Company, the Placing Shares or the Placing. Investec and Jefferies and each of their respective affiliates accordingly disclaim all and any liability, whether arising in tort, contract or otherwise (save as referred to above) in respect of any statements or other information contained in this announcement and no representation or warranty, express or implied, is made by Investec or Jefferies or any of their respective affiliates as to the accuracy, completeness or sufficiency of the information contained in this announcement.

Any indication in this announcement of the price at which Placing Shares have been bought or sold in the past cannot be relied upon as a guide to future performance.  No statement in this announcement is intended to be a profit forecast and no statement in this announcement should be interpreted to mean that earnings per share of the Company for the current or future financial years would necessarily match or exceed the historical published earnings per share of the Company.

Certain statements made in on these pages constitute forward looking statements. Forward looking statements can be identified by the use of words such as "may", "will", "should", "predict", "assurance", "aim", "hope", "risk", "expect", "intend", "estimate", "anticipate", "believe", "plan", "seek", "continue" or other similar expressions that are predictive or indicative of future events. All statements other than statements of historical facts included in on these pages, including, without limitation, those regarding the Group's expectations, intentions and beliefs concerning, amongst other things, the Group's results of operations, financial position, growth strategy, prospects and the industries in which the Group operates, are forward looking statements. By their nature, such forward looking statements involve known and unknown risks, uncertainties and other factors, many of which are outside the control of the Group and its Directors, which may cause the actual results, performance, achievements, dividends of the Group and industry results to be materially different from any future results, performance or achievements expressed or implied by such forward looking statements. As such, forward looking statements are no guarantee of future performance. 

TERMS AND CONDITIONS OF THE PLACING

THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN ARE RESTRICTED AND ARE NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, NEW ZEALAND, THE REPUBLIC OF IRELAND, THE REPUBLIC OF SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL. 

IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY.

MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN THIS APPENDIX ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC, AS AMENDED FROM TIME TO TIME, AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE "PROSPECTUS DIRECTIVE") ("QUALIFIED INVESTORS"); AND (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(1) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) (HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC) OF THE ORDER; OR (III) ARE PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS").

THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS APPENDIX DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.

THIS ANNOUNCEMENT IS NOT AN OFFER OF SECURITIES FOR SALE INTO THE UNITED STATES. THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE "US SECURITIES ACT") AND MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM, OR AS PART OF A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE US SECURITIES ACT AND IN COMPLIANCE WITH THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. THE PLACING SHARES ARE BEING OFFERED AND SOLD OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER THE US SECURITIES ACT.

EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF SUBSCRIBING FOR PLACING SHARES.

1.         Notice to investors

1.1       Persons who are invited to and who choose to participate in the Placing, by making an oral or written offer to subscribe for new ordinary shares in the Company to be issued in the Placing ("Placing Shares"), including any individuals, funds or others on whose behalf a commitment to subscribe for Placing Shares is given (the "Placees"), will be deemed to have read and understood this Announcement in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements and undertakings, contained in this Appendix.

1.2       The Placing Shares have not been approved or disapproved by the US Securities and Exchange Commission, any State securities commission or other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is unlawful.

1.3       The Placing Shares are being offered and sold outside the United States in accordance with Regulation S under the US Securities Act.  Any offering to be made in the United States will be made to a limited number of qualified institutional buyers (as defined in Rule 144A under the US Securities Act) pursuant to an exemption from registration under the US Securities Act in a transaction not involving any public offering.

1.4       The relevant clearances have not been, and nor will they be, obtained from the securities commission of any province or territory of Canada; no prospectus has been lodged with or registered by, the Australian Securities and Investments Commission or the Japanese Ministry of Finance; and the Placing Shares have not been, nor will they be, registered under or offered in compliance with the securities laws of any state, province or territory of Australia, Canada, Japan, New Zealand, the Republic of Ireland or the Republic of South Africa. Accordingly, the Placing Shares may not (unless an exemption under the relevant securities laws is applicable) be offered, sold, resold or delivered, directly or indirectly, in or into the United States, Australia, Canada, Japan, New Zealand, the Republic of Ireland, the Republic of South Africa or any other jurisdiction outside the United Kingdom.

1.5       Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Appendix or the Announcement of which it forms part should seek appropriate advice before taking any action.

2.         placing process

2.1       This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing.  No commissions will be paid to Placees or by Placees in respect of any Placing Shares.

2.2       The Banks and the Company shall be entitled to effect the Placing as they may, in their sole discretion, determine.

3.         Applications for listing and admission to trading

3.1       Applications have been made to the Financial Conduct Authority (the "FCA") for admission of the Placing Shares to the Official List of the UK Listing Authority and to the London Stock Exchange plc for admission to trading of the Placing Shares on its main market for listed securities ("Admission").

3.2       It is expected that Admission will become effective at or around 8.00 a.m. on 14 June 2013 and that dealings in the Placing Shares will commence at that time.

4.         Details of the Sponsor and Placing Agreement and the Placing Shares

4.1       Investec Bank plc ("Investec") and Jefferies International Limited ("Jefferies") (together, the "Banks") have entered into a sponsor and placing agreement (the "Sponsor and Placing Agreement") with the Company under which they have agreed (severally and not jointly or jointly and severally) as agents for the Company to use their respective reasonable endeavours to procure Placees for the Placing Shares at the price payable in respect of the Placing Shares (the "Placing Price") on the terms and subject to the conditions set out in this Announcement.

4.2       Following completion of the Placing, the Company shall publish a placing results announcement through a Regulatory Information Service (the "Placing Results Announcement"). Subject to and conditional upon the publication of the Placing Results Announcement, each of the Banks agrees (severally and not jointly or jointly and severally) to the extent they have failed to procure Placees to subscribe for all of the Placing Shares at the Placing Price or any Placee procured by the Banks fails to subscribe for any or all of the Placing Shares which have been allocated to it (such number of Placing Shares which are not so subscribed being the "Unplaced Placing Shares"), to subscribe, at the Placing Price, for the Unplaced Placing Shares.

4.3       The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing ordinary shares of 10 pence per share in the capital of the Company ("Ordinary Shares"), including the right to receive all dividends and other distributions declared, made or paid on or in respect of the Ordinary Shares after the date of issue of the Placing Shares.

4.4       The Banks are entitled, at any time before Admission, to terminate the Sponsor and Placing Agreement in accordance with the terms of the Sponsor and Placing Agreement in certain circumstances, including, inter alia:

(a)        any breach of the warranties given in the Sponsor and Placing Agreement;

(b)        any matter or circumstance arises as a result of which it is reasonable to expect that any of the Conditions will not be satisfied at the required time(s) (if any) and continue to be unsatisfied as at Admission; 

(c)        any material adverse change, or any development reasonably likely to result in, a material adverse change, in the condition or prospects of the Company and its subsidiaries (the "Group") taken as a whole; or

(d)        the occurrence of a suspension or material limitation in the trading in any securities of the Company or a banking moratorium declared by the United States or United Kingdom which in the opinion of the Banks, would make it impracticable or inadvisable to proceed with the Placing.

4.5       By participating in the Placing, Placees agree that the exercise by any Bank of any right of termination or other discretion under the Sponsor and Placing Agreement shall be within the absolute discretion of such Bank and that it need not make any reference to Placees and that it shall have no liability to Placees whatsoever in connection with any such exercise.

5.         Participation in, and principal terms of, the Placing

5.1       The Banks are arranging the Placing severally and not jointly or jointly and severally as bookrunners and agents of the Company. Participation will only be available to persons who may lawfully be, and are, invited to participate by either of the Banks. Each of the Banks and their respective affiliates are entitled to enter bids as principal in the Placing.

5.2       The allotment and issue of the Placing Shares to Placees by the Company will be in consideration of the transfer to the Company by Jefferies of shares in a Jersey incorporated company pursuant to a subscription and transfer agreement entered into between Jefferies, the Company and the Jersey company. The consideration from the Company for the transfer of the shares in the Jersey incorporated company will be the issue of the Placing Shares by the Company to the Placees.

5.3       Each Placee's allocation will be confirmed to Placees orally by the relevant Bank following the close of the Placing, and a trade confirmation will be dispatched as soon as possible thereafter. The relevant Bank's oral confirmation to such Placee will constitute an irrevocable legally binding commitment upon such person (who will at that point become a Placee) in favour of such Bank and the Company, under which such Placee agrees to subscribe for the number of Placing Shares allocated to it and to pay the relevant Placing Price on the terms and conditions set out in this Appendix and in accordance with the Company's corporate documents.

5.4       The Company will make the Placing Results Announcement following completion of the Placing confirming the number of Placing Shares to be issued at the Placing Price.

5.5       The Banks will, in effecting the Placing, agree with the Company the identity of the Placees and the basis of allocation of the Placing Shares.

5.6       An order placed in relation to the Placing will be made on the terms and subject to the conditions in this Appendix and will be legally binding on the Placee on behalf of which it is made and except with the relevant Bank's consent will not be capable of variation or revocation after the time at which it is submitted. Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to the relevant Bank, to pay it (or as it may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares for which such Placee has agreed to subscribe. Each Placee's obligations will be owed to the relevant Bank.

5.7       Except as required by law or regulation, no press release or other announcement will be made by the Banks or the Company using the name of any Placee (or its agent), in its capacity as Placee (or agent), other than with such Placee's prior written consent.

5.8       Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be subscribed for pursuant to the Placing will be required to be made at the same time, on the basis explained below under paragraph 13 (Registration and Settlement).

5.9       All obligations under the Placing will be subject to fulfilment or (where applicable) waiver of the conditions referred to below under paragraph 6 (Conditions of the Placing) and to the Sponsor and Placing Agreement not being terminated on the basis referred to in paragraph 4.4 above.

5.10     By participating in the Placing, each Placee agrees that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.

5.11     To the fullest extent permissible by law, neither the Banks, the Company nor any of their respective affiliates shall have any responsibility or liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise).  In particular, neither the Banks, the Company nor any of their respective affiliates shall have any responsibility or liability (including to the extent permissible by law, any fiduciary duties) in respect of the Banks' conduct of the Placing or of such alternative method of effecting the Placing as the Banks, their respective affiliates and the Company may agree.

6.         Conditions of the Placing

6.1       The Placing is conditional upon the Sponsor and Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. The Banks' obligations under the Sponsor and Placing Agreement are conditional on, inter alia:

(a)        Admission occurring not later than 8:00 a.m. London time on 14 June 2013;

(b)        none of the warranties, undertakings and covenants on the part of the Company contained in the Sponsor and Placing Agreement becoming untrue on and as of the date of the Sponsor and Placing Agreement and immediately before Admission;

(c)        the Company having complied with all of its material obligations under the Sponsor and Placing Agreement and under the terms and conditions set out in this Appendix which fall to be performed or satisfied on or prior to Admission;

(d)        the publication of the Placing Results Announcement on a Regulatory Information Service by 12.00 p.m. on 11 June 2013 (or such later time and/or date as the Banks and the Company may agree in writing);

(e)        the Company allotting and/or issuing, as applicable, subject only to Admission, the Placing Shares to the Placees or the Banks (as applicable) in accordance with the Sponsor and Placing Agreement;

(f)         neither of the Banks being entitled to give notice to terminate the Sponsor and Placing Agreement; and

(g)        no matter having arisen prior to Admission which might reasonably be expected to give rise to a claim under the indemnity in the Sponsor and Placing Agreement.

6.2       If (a) any of the conditions contained in the Sponsor and Placing Agreement, including those described above, are not fulfilled or (where applicable) waived by the Banks by the respective time or date where specified (or such later time or date as the Company and the Banks may agree) or (b) the Sponsor and Placing Agreement is terminated in the circumstances specified above, the Placing will lapse and the Placees' rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by it in respect thereof.

6.3       The Banks may, at their discretion and upon such terms as they think fit, waive compliance by the Company with the whole or any part of any of the Company's obligations in relation to the conditions in the Sponsor and Placing Agreement save that the above conditions relating, inter alia, to Admission taking place and the Company allotting and/or issuing, as applicable, the relevant Placing Shares may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement.

6.4       None of the Banks shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision it may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of the Banks.

7.         Representations and Warranties

7.1       By participating in the Placing each Placee (and any person acting on such Placee's behalf) represents and warrants that:

Capacity and authority

(a)        it (and any person acting on its behalf) is entitled to subscribe for Placing Shares under the laws of all relevant jurisdictions and that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to this participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this Appendix) and will honour such obligations;

Information regarding the Placing

(b)        it has read this Announcement, including the Appendix, in its entirety;

(c)        it acknowledges that no offering document or prospectus has been prepared in connection with the placing of the Placing Shares and represents and warrants that it has not received a prospectus or other offering document in connection therewith;

(d)        the only information on which it is entitled to rely and on which such Placee has relied in committing itself to subscribe for Placing Shares is contained in this Announcement, such information being all that such Placee deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by any of the Banks or the Company nor any of their respective affiliates and none of the Banks or the Company will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;

(e)        it has relied on its own investigation of the business, financial or other position of the Company and the Group in deciding to participate in the Placing;

Compliance with laws

(f)         the issue to it, or the person specified by it for registration as holder, of Placing Shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that the Placing Shares are not being subscribed for in connection with arrangements to issue depositary receipts or to issue or transfer Placing Shares into a clearance service;

(g)        it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006 (as amended) and the Money Laundering Regulations 2007 (as amended) and any related or similar rules, regulations or guidelines, issued, administered or enforced by any government agency having jurisdiction in respect thereof (the "Regulations") and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations;

(h)        it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;

(i)         it has neither received nor relied on any inside information concerning the Company in accepting this invitation to participate in the Placing;

(j)         if it is a pension fund or investment company, its purchase of Placing Shares is in full compliance with applicable laws and regulations.

Selling restrictions

(k)        it has not offered or sold and, prior to the expiry of a period of 90 days from Admission, will not offer or sell any Placing Shares to persons in the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of the Financial Services and Markets Act 2000 ("FSMA");

(l)         it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to the Placing Shares in circumstances in which section 21(1) of FSMA does not require approval of the communication by an authorised person;

(m)       it has not offered or sold and will not offer or sell any Placing Shares to persons in the EEA prior to Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the EEA within the meaning of the Prospectus Directive;

(n)        it is a Relevant Person (as defined above) and undertakes that it will subscribe for, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;

(o)        it is subscribing for the Placing Shares for its own account or for an account with respect to which it exercises sole investment discretion, and that it (and any such account) is outside the United States and is subscribing for the Placing Shares in an "offshore transaction" in accordance with Regulation S under the US Securities Act;

(p)        if it is a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, the Placing Shares subscribed for by it in the Placing will not be subscribed for on a non-discretionary basis on behalf of, nor will they be subscribed for with a view to their offer or resale to, persons in a member state of the EEA which has implemented the Prospectus Directive other than Qualified Investors, or in circumstances in which the prior consent of the Banks has been given to the offer or resale;

(q)        it is not, and at the time the Placing Shares are subscribed for will not be, located in the United States or a resident of Australia, Canada, Japan, New Zealand, the Republic of Ireland or the Republic of South Africa, and each of it and the beneficial owner of the Placing Shares is not a resident of Australia, Canada, Japan, New Zealand, the Republic of Ireland or the Republic of South Africa, and, at the time the Placing Shares are subscribed for:

(i)         will be subscribing for the Placing Shares in an "offshore transaction" in accordance with Rule 903 or Rule 904 of Regulation S under the US Securities Act;

(ii)        has such knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Placing Shares;

(iii)       will not look to the Banks for all or part of any such loss it may suffer;

(iv)       is able to bear the economic risk of an investment in the Placing Shares;

(v)        is able to sustain a complete loss of an investment in the Placing Shares; and

(vi)       has no need for liquidity with respect to its investment in the Placing Shares; and

(r)        unless otherwise specifically agreed with the Banks, it is, or at the time the Placing Shares are subscribed for that it will be, the beneficial owner of such Placing Shares, or that the beneficial owner of such Placing Shares is not a resident of Australia, Canada, Japan, New Zealand, the Republic of Ireland or the Republic of South Africa.

8.         further terms

8.1       By participating in the Placing each Placee (and any person acting on such Placee's behalf) acknowledges that:

(a)        none of the Banks, the Company, any of their respective affiliates or any person acting on behalf of any of them has provided, nor will provide it, with any material regarding the Placing Shares or the Company other than this Announcement; nor has it requested any of the Banks, the Company, any of their affiliates or any person acting on behalf of any of them to provide it with any such information;

(a)        the content of this Announcement is exclusively the responsibility of the Company and that none of the Banks, their respective affiliates or any person acting on behalf of any of them has or shall have any liability for any information, representation or statement contained in this Announcement or any information previously published by or on behalf of the Company and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement or otherwise.

(b)        none of the Banks, their respective affiliates or any person acting on behalf of any of them has or shall have any liability for any publicly available or filed information or any information, representation, warranty or statement relating to the Company or the Group contained therein or otherwise, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;

(c)        the Placing Shares have not been and will not be registered nor will a prospectus be approved in respect of any of the Placing Shares under the securities laws or legislation of the United States, Australia, Canada, Japan, New Zealand, the Republic of Ireland or the Republic of South Africa and, subject to certain exceptions, may not be offered, sold, or delivered or transferred, directly or indirectly, within those jurisdictions;

(d)        none of the Banks, nor any of their respective affiliates, nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of any Bank and that the Banks have no duties or responsibilities to it for providing the protections afforded to their respective clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Sponsor and Placing Agreement nor for the exercise or performance of any of their respective rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;

(e)        the Banks do not owe any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Sponsor and Placing Agreement;

(f)         the Company, the Banks and their respective affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and undertakings which are given to the Banks on their own behalf and on behalf of the Company and are irrevocable;

(g)        any Bank or any of its affiliates may, at its absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares;

(h)        when a Placee or person acting on behalf of the Placee is dealing with a Bank, any money held in an account with such Bank on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FCA made under FSMA. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from such Bank's money in accordance with the client money rules and will be used by such Bank in the course of its own business and the Placee will rank only as a general creditor of such Bank; and

(i)         all times and dates in this Announcement may be subject to amendment. The Banks shall notify the Placees and any person acting on behalf of the Placees of any changes.

8.2       Each Placee (and any person acting on such Placee's behalf) undertakes that it (and any person acting on its behalf) will make payment in respect of the Placing Shares allocated to it in accordance with this Appendix on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other subscribers or sold as the Banks may in their sole discretion determine and without liability to such Placee, who will remain liable for any amount by which the net proceeds of such sale falls short of the product of the relevant Placing Price and the number of Placing Shares allocated to it and may be required to bear any stamp duty, stamp duty reserve tax or other similar taxes (together with any interest or penalties) which may arise upon the sale of such Placee's Placing Shares.

8.3       Each Placee (and any person acting on such Placee's behalf) undertakes that the person whom it specifies for registration as holder of the Placing Shares will be (a) itself or (b) its nominee, as the case may be. None of the Banks or the Company will be responsible for any liability to stamp duty or stamp duty reserve tax or other similar taxes resulting from a failure to observe this requirement (including any interest, fines or penalties relating thereto) ("Indemnified Taxes"). Each Placee and any person acting on behalf of such Placee agrees to participate in the Placing and it agrees to indemnify the Company and the Banks on an after-tax basis in respect of any Indemnified Taxes.

9.         taxation

Placees should note that they will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable in the United Kingdom or any other jurisdiction by them or any other person on the subscription by them of any Placing Shares or the agreement by them to subscribe for Placing Shares.

10.       Indemnity

Each Placee (and any person acting on such Placee's behalf) agrees to indemnify on an after tax basis and hold the Company, the Banks and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Placing.

11.       Lock-up

The Company has undertaken to the Banks that, between the date of the Sponsor and Placing Agreement and the date which is 90 days later, it will not, without the prior written consent of the Banks, (a) directly or indirectly issue, offer, pledge, sell, contract to issue or sell, issue or sell any option or contract to purchase, purchase any option or contract to issue or sell, grant any option, right or warrant to purchase, deposit into any depositary receipt facility or otherwise transfer of dispose of any Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares or any other interest therein or (b) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of Ordinary Shares, whether any such swap or transaction described in (a) or (b) above is to be settled by delivery of Ordinary Shares or such other securities, in cash or otherwise provided that the foregoing shall not prevent or restrict, amongst other things, the grant of options, or the allotment and issue of shares pursuant to options, under any existing employee share schemes of the Company.

12.       No Prospectus

12.1     No offering document or prospectus has been or will be submitted to be approved by the FCA in relation to the Placing.

12.2     Placees' commitments will be made solely on the basis of the information contained in this Announcement. Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company or the Banks or any other person and none of the Banks or the Company nor any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.

13.       Registration and Settlement

13.1     Settlement of transactions in the Placing Shares (ISIN: GB00B17BBQ50) following Admission will take place within the CREST system. Subject to certain exceptions, the Banks and the Company reserve the right to require settlement for and delivery of the Placing Shares to Placees by such other means that they deem necessary if delivery or settlement is not practicable within the CREST system within the timetable set out in this Announcement or would not be consistent with the regulatory requirements in the Placee's jurisdiction.

13.2     Each Placee allocated Placing Shares in the Placing will be sent a trade confirmation in accordance with the standing arrangements in place with the relevant Bank stating the number of Placing Shares allocated to it at the Placing Price, the aggregate amount owed by such Placee to the Bank and settlement instructions. Each Placee agrees that it will do all things necessary to ensure that delivery and payment are completed in accordance with the standing CREST or certificated settlement instructions in respect of the Placing Shares that it has in place with the relevant Bank.

13.3     It is expected that settlement will be on 14 June 2013 in accordance with the instructions set out in the trade confirmation.

13.4     Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by the Banks.

13.5     Each Placee is deemed to agree that, if it does not comply with these obligations, the Banks may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the Banks' account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) or other similar taxes imposed in any jurisdiction which may arise upon the sale of such Placing Shares on such Placee's behalf.

13.6     If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.

13.7     Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax.

14.       governing law and jurisdiction

            Each Placee acknowledges that any agreements entered into by it pursuant to these terms and conditions, and all non-contractual or other obligations arising out of or in connection with them, shall be governed by and construed in accordance with the laws of England and Wales and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract (including any dispute regarding the existence, validity or termination of such contract or relating to any non-contractual or other obligation arising out of or in connection with such contract), except that enforcement proceedings in respect of the obligation to make payment for the Placing Shares (together with any interest chargeable thereon) may be taken by either the Company or the Banks in any jurisdiction in which the relevant Placee is incorporated or in which any of its securities have a quotation on a recognised stock exchange.

 

END

 

 

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